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Constitutional Law II
Villanova University School of Law
Lanctot, Catherine J.

Professor Lanctot        Spring 2010     Constitutional Law II
I.                        Standards of Review
Strict Scrutiny
Intermediate Scrutiny
Rational Basis
Compelling Interest
Important Interest
Legitimate Interest
Narrowly Tailored
Substantially Related
Rationally Related
II.                     Equal Protection: Rational Basis Review
a.       Railway Express
                    i.            Facts
1.      People were paying to advertise on other peoples vehicles
                  ii.            Holding
1.      Advertising on vehicles is prohibited unless it is advertising the business that owns the vehicle
2.      Rational Basis
Ø  Legit Objective: Driver Safety
Ø  Reasonably Related: Reduces amount of distractions
3.      “Chipping Away” at problem is allowed/Total Eradication of problem note required
b.      Fritz
                    i.            Facts
1.      Economic/Social welfare statute review
2.      Railroad retirement act – Denial of benefits to some groups
                  ii.            Holding
1.      Economic/Social welfare statutes get rational basis
2.      SCOTUS can uphold statute based on a rational basis if the statute/legislative history silent
c.       Moreno
                    i.            Facts
1.      Federal law denied food stamps to any household that had a person living there that was not related
                  ii.            Holding
1.      Legislative history can be used to show actual discrimination-based motivations giving rise to statute
2.      If the reason for passing the statute has no rational purpose at all, then it fails rational basis
Ø  Never legit state objective to discriminate against politically unpopular group
                    i.            Arbitrary Law: People being singled out for no reason
III.                  Equal Protection: Strict Scrutiny – Race
a.       Korematsu (Dead Letter Law)
                    i.            Facts
1.      Japanese-American man refused to go to internment camps as ordered by executive order
                  ii.            Holding
1.      Passed Strict Scrutiny Review
Ø  Compelling Government Interest: National Security
Ø  Narrowly Tailored: Based on the intelligence at the time, the target group of all Japanese-Americans was properly tailored
b.      Davis (Neutral Law – Disproportionate Impact)
                    i.            Facts
1.      Disproportionately high number of black applicants failed qualifying written
2.      exam for the police academy
                  ii.            Holding
1.      Disproportionate impact does not mean per se unconstitutionality
2.      Disproportionate impact can be evidence of rights violations but a discriminatory purpose is still needed
c.       Arlington Heights (Neutral Law – Disproportionate Impact)
                    i.            Facts
1.      Builders denied permits to build low and mid income housing in rich area
                  ii.            Holding
1.      Statistics, historical background, sequence of events leading to passage, departures from normal procedure, or legislative history can be used to show a likely inference of racial discrimination in the passing of statute
Ø  Powell cites to Griffin v. School Board  when referring to historical background factor
                iii.            If inference of racial discrimination is proved, then strict scrutiny applies
d.      Yick Wo (Neutral Law – Disproportionately Applied)
                    i.            Facts
1.      Law restricting wooden buildings from being laundry mats
2.      Law was only applied against Asians who owned 70% of laundry mats in NYC
                  ii.            Holding
1.      “Evil eye and unequal hand”
2.      Discrimination in enforcement gets strict scrutiny
e.       Feeney (Neutral Law – “In Spite Of” Disproportionate Impact)
                    i.            Facts
1.      Extra benefit for veterans in statute
2.      At the time 99% of veterans were male thus a disproportionate impact
                  ii.            Holding
1.      If congress adopts a law in spite of the fact that it will have a disproportionate impact then it does not get strict scrutiny
f.       Brown v. Board
                    i.            Facts
1.      Death to “Separate but Equal” in schools
2.      Overturns Plessy v. Ferguson
                  ii.            Holding
1.      No mention of Strict Scrutiny in opinion
2.      Based on other legal reasoning
3.      “Although Brown is poorly reasoned, it may be the best thing the court did in the last 100 years” (READ SUMMARY BEFORE EXAM)
g.      Richmond
                    i.            Facts
1.      City of Richmond pasted ordinance that said 30% of construction job had to go to minorities
2.      White contractor who was only bidder denied based on ordinance
                  ii.            Holding
1.      Strict scrutiny for race-based statues that are beneficial to minorities
2.      Benign Racial Discrimination is struck down
3.      Court wants to restrict power in cases where minorities in local government had the all the power
4.      Unacceptable Compelling Interest and Not Narrowly Tailored
Ø  Laws must be based on racial discrimination in the jurisdiction in the field of the law not general racial discrimination
h.      Adarand
                    i.            Facts
1.      U.S. department of transportation gave contact to a person who then sub-contacted to a minority over a white man who bided lower because the minority was a “disadvantaged” business
                  ii.            Holding
1.      Racial classifications imposed by the federal government are reviewed under strict scrutiny
2.      Benign racial discrimination is not allowed
i.        Grutter (Law School) and Gratz (Undergrad)
                    i.            Facts
1.      Race was used in admissions process at Michigan law school
                  ii.            Holding
1.      Race used as a general factor for admission in Law School is okay
2.      Race used as a specific factor for admission (i.e quotas or numerical boost) in Undergrad is not okay
j.        Hunter
                    i.            Facts
1.      Original city charger passed ordinance stating no discrimination in housing
2.      Charter was amended by referendum to make current or future ordinances dealing with anti-discrimination in housing would be invalid 
                  ii.            Holding
1.      Amendment specifically targeted on racial group that disadvantaged them in housing matters thus it is unconstitutional
k.      Washington v. Seattle School District (1978)
                    i.            Facts
1.      Mandatory busing in public schools (Quotas)
                  ii.            Holding
1.      Benign Racial Discrimination gets strict scrutiny
2.      Busing policy fails compelling interest/narrowly tailored
l.        PICS v. Seattle School District (2007)
                    i.            Facts
1.      Students allowed to apply to any school within the district
2.      Race used as a tie breaking factor in denying children enrollment to a certain school that had been over applied to
                  ii.            Holding
1.      Benign Racial Discrimination is not allowed
2.      All racial discrimination must pass strict scrutiny
                iii.            EXAM (See bottom of page 705)[Kennedy – Concurring] 1.      Representing School/Government (NOT THE LAW)
Ø  General policies to promote diversity should be allowed

2.      Statutes that have residence tenure requirements are unconstitutional
d.      Reynolds
                    i.            Facts
1.      Rules for apportionment of seats in the Alabama senate based on something other than population
                  ii.            Holding
1.      Equal protection of all people’s right to have equal votes
2.      Apportionment must be based on population
3.      Substantially equal state legislative representation for all citizens
VI.                  State Action
a.       Marsh
                    i.            Facts
1.      Woman convicted of trespassing for handing out literature on the sidewalk in a “company town”
                  ii.            Holding
1.      Relationship between the Company and the citizens of the “company town” is substantially the same as the relationship between the government and citizens of a normal town, thus constitutional rights apply to the “company town”
2.      The more a private owner opens his land to public use, the more likely it will be that he will be subject to constitutional rights
b.      Jackson
                    i.            Facts
1.      Private utility company cut of power to person without notification or the opportunity to pay up balance
2.      Lady claimed Jackson is a state actor and thus violated due process rights
                  ii.            Holding
1.      Since the utility company was not required by state law to provide the utilities, then they are not state actors and thus not subject to the 14th Amendment
c.       Burton
                    i.            Facts
1.      Wilmington Parking Authority leased space to Eagle Coffee Shop
2.      ECS refused to serve Burton because he was black
                  ii.            Holding
1.      The coffee shop was both physically and financially integrated with the state, and thus they are state actors
d.      Brentwood Academy
                    i.            Facts
1.      The non-governmental TSAA punished Brentwood for using undue influence in recruiting football players
2.      All board of TSAA were governmental school officials
3.      Brentwood argued that TSAA is a state actor and thus is violating their 14th and 1st Amendment rights
                  ii.            Holding
1.      Presumption of state action if many or all of the board members of the private institution are government officials
2.      Presumption of state action if government approves or appears to approve of a private institution acting in the government’s stead
e.       Kramer
                    i.            Facts
1.      Kramer sold house to Fitzgerald with a covenant not to sell to minorities attached
2.      Fitzgerald tried to sell his house to a black lady
3.      Kramer sued to stop the sell based on the covenant
                  ii.            Holding
1.      The race based covenant is constitutional because it is a totally private contract
2.      However, if a judge were to enforce the covenant, it would be a state action violating the constitution